Saturday, March 22, 2003

S.Ct. prediction

The only case to be argued Tuesday is Federal Election Comm'n v. Beaumont, about the First Amendment and campaign finance. This is not the big test of campaign finance reform; it's a discrete smaller case about the federal statute prohibiting all corporations from making direct campaign contributions. The plaintiffs (an anti-abortion advocacy entity that is a corporation, and some of its supporters) claim that this is unconstitutional as applied to corporations that exist for the very purpose of political advocacy. The Fourth Circuit agreed. (The Fourth Circuit also held that this corporation has the First Amendment right to engage in direct political expenditures, because it is primarily a political advocacy group, and the government has not sought Supreme Court review of that part of the case).

If you want real erudite analysis, ask somebody like Ed Still or Rick Hasen. I'll just give you the short version. There is a unanimous decision from 1982 that wasn't really about this precise same question, but that includes some strong language saying (maybe even definitively holding, depending on how you look at it) that this across-the-board ban on corporate campaign contributions is perfectly consistent with the First Amendment. That's National Right to Work Committee. The only Justices still remaining from that Court are Rehnquist, Stevens, and O'Connor. Then, in 1986, a fractured court – over the dissent of four Justices, including Rehnquist and Stevens – held that a political-advocacy corporation did have the First Amendment right to make direct expenditures, as distinct from campaign contributions. That's Mass Citizens for Life.

So my bet is that, based if nothing else on the value of adhering to precedent (in this case, the precedent being Right to Work Committee), the Court will REVERSE the Fourth Circuit. I count on Justices Rehnquist, Stevens and O'Connor, based on their previous votes. I bet dollars to donuts that Justice Breyer will join them. And I feel pretty comfortable that either Justice Kennedy or Justice Souter, or both, will do so as well.

In case any entity decides that this constitutes a communication about my services, let me point out that:
No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.